United States District Court, N.D. Oklahoma
OPINION AND ORDER
JAMES
H. PAYNE UNITED STATES DISTRICT JUDGE.
This is
a 42 U.S.C. § 1983 civil rights action commenced by
Plaintiff Michael Wayne Skinner, a state inmate appearing
pro se and proceeding in forma pauperis.
Skinner claims Defendants Heath Winfrey and Robin Livingston
violated his constitutional right to adequate medical care by
failing to timely schedule an operation to repair a fracture
in his left arm while he was incarcerated at the Craig County
Jail in Vinita, Oklahoma. Before the Court are two motions:
Defendants' motion for summary judgment (Dkt. 41) and
Defendants' motion for discovery sanctions (Dkt. 42).
Skinner did not respond to either motion. For the reasons
discussed below, the Court finds Skinner has not demonstrated
a constitutional violation and thus cannot overcome
Defendants' assertion of qualified immunity. The Court
therefore grants Defendants' motion for summary judgment.
The Court finds, however, that the circumstances of this case
do not support Defendants' request for discovery
sanctions and thus denies their motion for sanctions.
BACKGROUND
Skinner
is currently incarcerated at the Mack Alford Correctional
Center (MACC) in Stringtown, Oklahoma. However, when he
commenced this action in April 2018, Skinner was incarcerated
at the Craig County Jail (CCJ) in Vinita, Oklahoma. Dkt. 1,
Complaint, at 1;[1] Dkt. 41, Motion for Summary
Judgment, at 13, ¶ 30. Winfrey is the Sheriff of
Craig County, and Livingston is the CCJ's former Jail
Administrator. Dkt. 41, Motion for Summary Judgment,
at 7, ¶ 1. Skinner was incarcerated at the CCJ for two
periods relevant to his claim: from January 2, 2017, until
January 20, 2017, and from January 22, 2017, until May 22,
2018. Id. at 7-8, 13, ¶¶ 2, 3, 5, 30.
Several
months before he was arrested and held at the CCJ, likely in
mid-2016, Skinner was hit in the left arm with a baseball
bat. Dkt. 41-1, Plaintiff's Deposition, taken January
10, 2019, at 7. When Skinner was first booked into the
CCJ on January 2, 2017, CCJ officials completed a medical
assessment and found no visible signs of trauma or obvious
pain requiring immediate treatment. Dkt. 41, Motion for
Summary Judgment, at 7, ¶ 3; Dkt. 41-3, Medical
Questionnaire, dated January 2, 2017, at 1. During the
assessment, Skinner reported that he had no medical problems
other than a possible MRSA infection. Dkt. 41-3, at 2.
Skinner was released from the CCJ to the custody of Ottawa
County on January 20, 2017. Dkt. 41, Motion for Summary
Judgment, at 8, ¶ 4. While he was held at the
Ottawa County Jail, Skinner did not complain to anyone about
pain in his left arm. Dkt. 41-1, Plaintiff's
Deposition, taken January 10, 2019, at 10. When Skinner
returned to the CCJ on January 22, 2017, CCJ officials
completed a second medical assessment and found no visible
signs of trauma or obvious pain requiring medical treatment.
Dkt. 41, Motion for Summary Judgment, at 8,
¶¶ 5, 6; Dkt. 41-5, Medical Questionnaire,
dated January 22, 2017, at 1. During that assessment,
Skinner reported that he had no medical problems other than a
MRSA infection. Dkt. 41-5, at 1-2. He also reported that he
had been either hospitalized or treated by a doctor five
weeks prior for some unspecified condition. Id. at
3.
On
April 19, 2017, Skinner was involved in a fight with two
inmates. Dkt. 41, Motion for Summary Judgment, at 8,
¶ 7; Dkt. 41-6, Craig County Jail Incident
Report, at 1. He received a bite mark to his forehead
and lacerations to his right elbow, left knee, and left foot.
Dkt. 41-6, at 1. A nurse at the CCJ evaluated Skinner's
injuries. Id. Based on the nurse's
recommendation, Winfrey directed CCJ staff to transport
Skinner to the emergency room for evaluation and treatment.
Id. At the emergency room, Skinner's bite wound
and abrasions were cleaned and treated and he was prescribed
two medications. Dkt. 41, Motion for Summary
Judgment, at 8, ¶ 9. At that time, Skinner did not
complain of any pain in his left arm and no x-rays were
ordered. Id.; Dkt. 41-7, St. Francis Medical
Records, at 1-16. After Skinner returned to the CCJ from
the emergency room, CCJ medical staff administered his
prescriptions as directed. Dkt. 41-9, Medication
Administration Record, at 1.
On June
21, 2017, Skinner complained of pain in his left arm and
requested a medical appointment. Dkt. 41, Motion for
Summary Judgment, at 8-9, ¶ 10; Dkt. 41-10,
Sick Call Request Form, dated June 21, 2017, at 1.
Skinner stated he had been experiencing pain in his left arm
“for about three weeks.” Dkt. 41-10, Sick
Call Request Form, dated June 21, 2017, at 1. Eight days
later, on June 29, 2017, Sheriff's Deputy Frank Nellen
transported Skinner to the Cherokee Nation Vinita Clinic.
Dkt. 1, Complaint, at 4; Dkt. 41, Motion for
Summary Judgment, at 9, ¶ 12. Kathryn Holloway,
ARNP, examined Skinner. Dkt. 41-11, Office Clinic Notes,
dated June 29, 2017, at 1. Skinner told Holloway he had
been hit with a chair during an altercation that occurred six
months before his clinic visit and that he did not receive
x-rays at that time. Id.; see also Dkt. 4,
Plaintiff's First Supplemental Pleading, at 6.
Holloway ordered x-rays of Skinner's left arm and
diagnosed him with “a non-union fracture of [his] left
forearm.”[2] Dkt. 41, Motion for Summary
Judgment, at 9, ¶ 12; see also Dkt. 1,
Complaint, at 4; Dkt. 41-11, Office Clinic
Notes, dated June 29, 2017, at 3-4; Dkt. 41-12,
Plaintiff's X-Rays, at 1. Holloway placed a
splint on Skinner's left forearm, prescribed two
medications to treat pain and muscle spasms, and sent
Skinner's x-rays to an orthopedic specialist for further
evaluation. Dkt. 41, Motion for Summary Judgment, at
9, ¶ 12. When Skinner returned to the CCJ after his
clinic visit, CCJ medical staff administered his medications
as directed. Id.; see Dkt. 41-13,
Medication Administration Record, at 1-7.
Skinner
was transported from the CCJ to the Cherokee Nation Vinita
Clinic on July 12, 2017, for a follow-up visit. Dkt. 4,
Plaintiff's First Supplemental Pleading, at 12;
Dkt. 41, Motion for Summary Judgment, at 9, ¶
13. During that visit, Skinner told Jeffrey Gastorf, D.O.,
that his left forearm “injury started about 8 months
ago when he was hit by a baseball bat” and that he did
not have his arm evaluated at the time of the injury. Dkt.
41-14, Office Clinic Notes, dated July 12, 2017, at
1. Skinner reported “persistent” pain and
weakness in his left arm. Id. Dr. Gastorf replaced
the cotton and bandage on Skinner's splint and noted the
next step would be to refer Skinner for an orthopedic
consultation. Id.
On July
14, 2017, the Cherokee Nation WW Hastings Indian Hospital
(“Hospital”), in Tahlequah, Oklahoma, referred
Skinner to The Orthopaedic Center (“Center”), in
Tulsa, Oklahoma, for an orthopedic consultation. Dkt. 41,
Motion for Summary Judgment, at 9, ¶ 14; Dkt.
41-15, Letter from Center to Plaintiff, dated July 25,
2017, at 1; Dkt. 41-16, Referral for
Contract Professional Services, dated July 14, 2017,
at 1. The referral form the Hospital sent to the Center
indicates Skinner's left forearm fracture was, at that
time, “6 to 8 month[s] old.” Dkt. 41-16, at 1.
On
August 9, 2017, Deputy Nellen transported Skinner from the
CCJ to the Center for an orthopedic consultation. Dkt. 1,
Complaint, at 4; Dkt. 41, Motion for Summary
Judgment, at 10, ¶ 15. Brian Chalkin, D.O.,
confirmed that Skinner had a non-union left ulnar shaft
fracture and recommended outpatient surgery. Dkt. 41-17,
Surgery Checklist, at 1. Two days later, the
Hospital approved Dr. Chalkin's request for a surgical
referral. Dkt. 1, Complaint, at 9; Dkt. 4,
Plaintiff's First Supplemental Pleading, at 5;
Dkt. 41, Motion for Summary Judgment, at 10, ¶
16; Dkt. 41-18, Referral, dated August 11, 2017, at
1. On August 22, 2017, the Center sent Skinner a letter,
addressed to his home address, acknowledging receipt of the
Hospital's approval and requesting that Skinner contact
the Center to schedule his surgery. Dkt. 41, Motion for
Summary Judgment, at 10, ¶ 17; Dkt. 41-20,
Letter from Center to Plaintiff, dated August 22,
2017, at 1.[3]
Sometime
after August 22, 2017, Skinner's sister, Sherryl Herndon,
“hand delivered” the “paperwork”
approving Skinner's surgery to Livingston at the CCJ.
Dkt. 7, Plaintiff's Second Supplemental
Pleading, at 1; Dkt. 41, Motion for Summary
Judgment, at 10, ¶ 18; Dkt. 41-1,
Plaintiff's Deposition, taken January 10, 2019,
at 15-16, 21. Three weeks after Herndon delivered the
paperwork to Livingston, Skinner asked Tricia Fleming, a
nurse at the CCJ's medical facility, “what's
going on with my arm.” Dkt. 41-1, at 21; see
also Dkt. 1, Complaint, 3; Dkt. 7,
Plaintiff's Second Supplemental Pleading, at 1.
Fleming told Skinner that the paperwork had been “found
on a desk in the Sheriff's Department.” Dkt. 1,
Complaint, at 3; Dkt. 7, Plaintiff's
Second Supplemental Pleading, at 1. Although
Fleming did not say which desk, Skinner assumed it was
Livingston's. Dkt. 41-1, Plaintiff's Deposition,
taken January 10, 2019, at 21.
On
October 16, 2017, Fleming spoke with Angela at the Center
regarding Skinner's left arm injury. Dkt. 4,
Plaintiff's First Supplemental Pleading, at 3;
Dkt. 41, Motion for Summary Judgment, at 10, ¶
19. Angela advised Fleming that Skinner would need to obtain
new referrals from the Hospital both (1) for another
orthopedic consultation with the Center and (2) for any
surgical procedure the Center may recommend. Dkt. 4,
Plaintiff's First Supplemental Pleading, at 3;
Dkt. 41-21, Craig County Medical Visit Log, dated October
27, 2017, at 1. Angela referred Fleming to the
Hospital's coordinator who was not in the office on that
date, and Fleming indicated in her notes that she would call
the coordinator a few days later. Dkt. 41-21, at 1.
Skinner
submitted sick call request forms “to the nurse or jail
administrator” on October 26, 2017, and October 27,
2017, asking when his operation would be scheduled and
requesting an explanation for the delay. Dkt. 41, Motion
for Summary Judgment, at 11, ¶¶ 20, 21; Dkt.
41-22, Sick Call Request Form, dated October 26,
2017, at 1-2; Dkt. 41-23, Sick Call Request Form,
dated October 27, 2017, at 1-2. On October 31, 2017,
Skinner was transported from the CCJ to the Center. Dkt. 41,
Motion for Summary Judgment, at 11, ¶ 22.
During that visit, the Center confirmed Skinner's
diagnosis as a non-union fracture and noted that the Center
was awaiting authorization from the Hospital to schedule
Skinner's surgery. Id.; Dkt. 41-24, Return
to Work/School Form, dated October 31, 2017, at 1.
On
November 30, 2017, Skinner complained of pain in his left arm
and requested pain medication. Dkt. 41, Motion for
Summary Judgment, at 11, ¶ 23; Dkt. 41-25, Sick
Call Request Form, dated November 30, 2017, at 1. The
next day, December 1, 2017, Skinner submitted a Craig County
request form to Livingston, asking why his operation had not
been scheduled. Dkt. 41, Motion for Summary
Judgment, at 11, ¶ 24; Dkt. 41-26, Craig County
Request Form, dated December 1, 2017, at 1-2. In
response to the request submitted to Livingston, Fleming
provided Skinner with ibuprofen. Dkt. 41-26, at 1. Fleming
received Skinner's November 30 sick call request form on
December 4, 2017, and again provided him with ibuprofen. Dkt.
41-25, at 1.
Skinner
was transported from the CCJ to the Cherokee Nation Vinita
Clinic on December 6, 2017, for further evaluation. Dkt. 4,
Plaintiff's First Supplemental Pleading, at 14;
Dkt. 41, Motion for Summary Judgment, at 11, ¶
25. Dr. Gastorf noted that Skinner “was previously seen
by orthopedic clinic and was told that [his arm] needed
repair but since patient was incarcerated patient needed to
go through the jail system to get repair done.” Dkt. 4,
Plaintiff's First Supplemental Pleading, at 14;
Dkt. 41-27, Office Clinic Notes, dated December 6,
2017, at 1. Dr. Gastorf advised Skinner that the
Cherokee Nation was no longer willing to pay for the
operation given that Skinner was incarcerated and that
Skinner would need to contact Livingston “to get the
process started.” Dkt. 41-27, at 1. Dr. Gastorf
prescribed ibuprofen for Skinner's pain. Id.
When Skinner returned to the CCJ, CCJ medical staff
administered the ibuprofen as directed. Dkt. 41-28,
Medication Administration Record, at 1.
Skinner
submitted a sick call request form to Fleming on December 15,
2017, indicating the pain in his arm had increased, his lower
forearm was “real sore, ” he was feeling pain in
his left shoulder, and the pain medication would not
“fix the problem.” Dkt. 1, Complaint, at
12-13; Dkt. 41, Motion for Summary Judgment, at 12,
¶ 26; Dkt. 41-29, Sick Call Request Form, dated
December 15, 2017, at 1. Fleming received the form on
December 19, 2017, and scheduled Skinner for an appointment
with Curtis Phillips, D.O. Dkt. 41-29, Sick Call Request
Form, dated December 15, 2017, at 1; Dkt. 41-31, Dr.
Phillips' Office Notes, dated December 23, 2017, at
1.
Skinner
submitted a Craig County Request Form to Sheriff Winfrey on
December 19, 2017. Dkt. 41, Motion for Summary
Judgment, at 12, ¶ 27; Dkt. 41-30, Craig County
Request Form, dated December 19, 2017, at 1. On
the form, Skinner stated his pain was “getting
worse” and he reminded Winfrey the x-rays taken in
August and October had confirmed his arm was broken. Dkt.
41-30, at 1. Skinner further indicated his understanding that
Craig County “is liable” for the operation while
he is incarcerated and asked Winfrey to explain the delay.
Id. at 1-2. Winfrey responded to Skinner's
request on December 28, 2017, as follows:
I have included your medical records. The county would not be
liable for your condition. You told us your arm was broken
prior to you being incarcerated. The doctor stated your
injury was 8 months or older in August. Your medical
condition is pre-existing. I had agreed to help you get the
surgery but never agreed I was paying the bill. I ...